ICCL statement on Minister for Justice, Charlie Flanagan’s statement regarding the recording of Gardai on duty

by

17th September 2018

The Irish Council for Civil Liberties (ICCL) is seriously concerned by the Minister for Justice’s suggestion on the radio this morning that he supports legislation to outlaw the photographing of Gardai acting in the course of their duties.

While the criminal harassment or intimidation of Gardai is unacceptable, the general outlawing of photographing Gardai while on duty would be a grossly disproportionate response to the incidents that arise where technology is misused. A blanket restriction on freedom of expression, which would criminalise ordinary members of the public for sharing information about public events, is not the answer to the challenges that Gardai are called to deal with on a daily basis.

Only a week ago, we witnessed the importance of public access to images of Gardai on duty. The circulation of photographs of masked Gardai at the scene of a housing rights protest prompted widespread public debate about how An Garda Siochana goes about the policing of protest. The photographs led to a statement by the new Garda Commissioner that the Gardai had not acted in accordance with their own policies, and to the Garda Commissioner requesting a report on the incident. The events of last week demonstrate exactly why the Minister is wrong to suggest that this crucial mechanism of transparency should be outlawed.

As the ICCL has stated before, the rights to peaceful protest are fundamental to our democracy. These are the rights to freedom of belief, expression, association and assembly, and they are protected not only by the Irish Constitution but also by European and international human rights instruments to which Ireland is party.

An Garda Siochana is obliged to protect and facilitate individuals’ use of their rights to peacefully protest. Gardai are also obliged to police protest in a manner that only uses force to the degree that is absolutely necessary and proportionate.

The ability to record police operations during public protest is an essential safeguard to ensure that the Gardai comply with their human rights obligations. Transparency also protects police, in that it provides them with an avenue to demonstrate how they acted to uphold the law in difficult situations.

Time and time again, both in Ireland and abroad, we have witnessed how recordings of police behaviour during protests has helped to shine a light on violations of human rights obligations by police actors, and indeed violations of the law by private individuals where they occur. In many countries, police representatives are now required to wear body cameras themselves in order to ensure that they are accountable, and indeed protected, in their actions.

The Organization for Security and Cooperation in Europe (OSCE) has published Guidelines on Freedom of Peaceful Assembly which explain States’ obligations under the European Convention on Human Rights as established in ECHR case law.

The OSCE Guidelines state that:

The photographing or video recording of the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law-enforcement agencies should be subject to prior judicial scrutiny.

During public assemblies the photographing or video recording of participants by law-enforcement personnel is permissible. However, while monitoring individuals in a public place for identification purposes does not necessarily give rise to interference with their right to private life, the recording of such data and the systematic processing or permanent nature of the record created and retained might give rise to violations of privacy. Moreover, photographing or making video recordings of assemblies for the purpose of gathering intelligence can discourage individuals from enjoying the freedom to assemble and should, therefore, not be done routinely.

Law-enforcement agencies should develop and publish a policy related to their use of overt filming/photography at public assemblies.

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has issued several reports calling attention to the increasing problem of arrests, censorship and violence towards ‘citizen journalists’ around the world. Reminding States of their obligation to respect the right to freedom of expression, the Special Rapporteur has stated:

Imprisoning individuals for seeking, receiving and imparting information and ideas can rarely be justified as a proportionate measure to achieve one of the legitimate aims under article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

… protection of national security or countering terrorism cannot be used to justify restricting the right to expression unless the Government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Additionally, the Special Rapporteur reiterates that the right to freedom of expression includes expression of views and opinions that offend, shock or disturb. Moreover, as the Human Rights Council has also stated in its resolution 12/16, restrictions should never be applied, inter alia, to discussion of Government policies and political debate; reporting on human rights, Government activities and corruption in Government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups.

The Special Rapporteur has further stated about citizen journalists that:

The importance of this new form of journalism cannot be underestimated… citizen journalists contribute to the creation of a richer diversity of views and opinions, including information about their communities and groups in need of particular attention.